August 25, 2011

In FCPA Sting Case, Prosecutors Revise Discovery Process

Prosecutors in Washington are revising the government's discovery procedure in a closely watched foreign bribery case here, choosing a third-party vendor to store material for which defense lawyers must pay to access.

The new process, announced in a court filing (PDF) Wednesday night in U.S. District Court for the District of Columbia, will change the way material is produced to more than a dozen arms and equipment industry executives and employees charged in a conspiracy to violate the Foreign Corrupt Practices Act.

Prosecutors, including Laura Perkins and Glenn Leon of DOJ’s Fraud Section and Matthew Graves, an assistant U.S. attorney, said the new procedure is designed to streamline the process of getting information into the hands of defense lawyers. Court papers do not reveal the impetus for the change. A Justice spokeswoman declined to comment.

Trial-related material, including witness statements and subpoena returns, will be produced directly to the relevant defendants in advance of trial at the government’s expense. But other defendants must order the information, at their own cost, from a vendor. DOJ chose Arlington-based CACI International to provide litigation support services.

Four groups of defendants are set for trial in the coming months in Washington, including one case in September. The other trials are scheduled for December, February and May. The February trial is a retrial of the first group. A mistrial was declared in that case in July.

At a hearing in the case Aug. 18, lawyers for the six defendants set for trial next month argued the defense teams should not have to pay for access to information.

Responding to the criticism, prosecutors said the rules of criminal procedure do not require the government to cover the cost of all discovery expenses. The rules, prosecutors said, require the government to make material available for production and copying. But DOJ said the government is not obligated to pay the cost of providing information to defense attorneys.

To aid the defendants, prosecutors said the defense lawyers will receive indexes of the information available at CACI. Prosecutors said CACI will not discuss any defense requests for information with the government.

“[T]he defendants can be assured that their defense theories will not be revealed to the government if they obtain data from CACI,” prosecutors said.

The Justice Department said it has negotiated a pricing framework with CACI “that will provide the defendants a significant saving to what they would normally be charged.” A CACI spokeswoman declined to comment.

In the earlier stages of the case, filed in Washington in January 2010, prosecutors said they turned over, on the government’s dime, thousands of hours of audio and video recording to the defendants.

The authorities seized through the execution of search warrants hundreds of thousands of pages of documents and more than 75 computers. All of the search warrant information will be available at CACI, prosecutors said.

Prosecutors said they’ve developed a process with CACI to ensure any privileged, confidential or sensitive information is protected and that disputes are promptly handled.

Adam Safwat, an assistant chief in the DOJ Fraud Section, is the lead attorney on the government’s filter team, which will examine documents outside the presence of the trial attorneys.

U.S. District Judge Richard Leon is scheduled to meet with prosecutors and defense lawyers on Sept. 1 for a status conference. The next trial in the prosecution is scheduled for Sept. 22.